Docket: T-1271-07
Citation: 2011 FC 825
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Montréal, Quebec, July 6, 2011
PRESENT: Richard Morneau, Prothonotary
BETWEEN:
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ROLAND
ANGLEHART SR. ET AL.
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Plaintiffs
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and
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HER
MAJESTY THE QUEEN
IN RIGHT
OF CANADA
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Defendant
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REASONS
FOR ORDER AND ORDER
[1]
The Court has before it a motion by the plaintiffs seeking
a ruling on the undertakings taken under advisement by the defendant during the
examination for discovery of her designated representative, Jim Jones. This examination
that took place over a period of eighteen (18) days, from September 27 to
October 26, 2010.
[2]
This motion relates to an action in damages brought in 2007
by the some 96 plaintiffs. It seems reasonable to define the parameters of this
case by reproducing a summary provided in the past by the defendant as part of
an order denying the plaintiffs the production of a more complete affidavit of
documents:
[TRANSLATION]
… The wrongful action complained of by the plaintiffs that
gave rise to the dispute between the parties began on May 2, 2003, when the
Minister of Fisheries and Oceans (hereinafter the “Minister”) issued the
three-year snow crab management plan in Area 12 of the Gulf of St. Lawrence. It
is alleged that, by announcing this management plan, the Minister decided unilaterally
to reduce the plaintiffs’ share of the total allowable catch (hereinafter
“TAC”) in order to allocate it to Aboriginal persons, fishers of other fish
species, and fishers in other fishing areas.
[References omitted.]
Analysis
I ‑ Questions to be answered and documents to be produced during an examination for
discovery: Applicable general principles
[3]
In Reading & Bates Construction Co. and al. v. Baker
Energy Resources Corp. and al. (1988), 24 C.P.R. (3rd) 66, Justice McNair, in
a general six-point note, first defined, in points 1 to 3, the parameters for
determining whether a question (here an undertaking) or a document is relevant,
and then stated, in points 4 to 6, a series of circumstances or exceptions
whereby a question need not be answered or a document need not be produced.
[4]
The Court stated the following at pages 70 to 72 :
1. The test as to what documents are
required to be produced is simply relevance. The test of relevance is not a
matter for the exercise of the discretion. What documents parties are entitled
to is a matter of law, not a matter of discretion. The principle for
determining what document properly relates to the matters in issue is that it
must be one which might reasonably be supposed to contain information which may
directly or indirectly enable the party requiring production to advance his own
case or to damage the case of his adversary, or which might fairly lead him to
a train of inquiry that could have either of these consequences: Trigg v. MI
Movers Int'l Transport Services Ltd. (1986), 13 C.P.C. (2d) 150 (Ont. H.C.); Canex Placer
Ltd. v. A.-G. B.C. (1975), 63 D.L.R. (3d) 282, [1976] 1 W.W.R. 644
(B.C.S.C.); and Compagnie Financiere et Commerciale du Pacifique v. Peruvian
Guano Co. (1882), 11 Q.B.D. 55 (C.A.).
2. On an examination for discovery
prior to the commencement of a reference that has been directed, the party
being examined need only answer questions directed to the actual issues raised
by the reference. Conversely, questions relating to information which has
already been produced and questions which are too general or ask for an opinion
or are outside the scope of the reference need not be answered by a witness: Algonquin
Mercantile Corp. v. Dart Industries Canada Ltd. (1984), 82 C.P.R. (2d) 36
(F.C.T.D.); affirmed 1 C.P.R. (3d) 242 (F.C.A.).
3. The propriety of any question on
discovery must be determined on the basis of its relevance to the facts pleaded
in the statement of claim as constituting the cause of action (...)
4. The court should not compel answers
to questions which, although they might be considered relevant, are not at all
likely to advance in any way the questioning party's legal position: Canex
Placer Ltd. v. A.-G. B.C., supra; and Smith, Kline & French
Laboratories Ltd. v. A.-G. Can. (1982), 67 C.P.R. (2d) 103 at p. 108, 29 C.P.C. 117 (F.C.T.D.).
5. Before compelling an answer to any
question on an examination for discovery, the court must weigh the
probability of the usefulness of the answer to the party seeking the
information, with the time, trouble, expense and difficulty involved in
obtaining it. Where on the one hand both the probative value and the
usefulness of the answer to the examining party would appear to be, at the
most, minimal and where, on the other hand, obtaining the answer would involve
great difficulty and a considerable expenditure of time and effort to the party
being examined, the court should not compel an answer. One must look at what
is reasonable and fair under the circumstances: Smith, Kline &
French Ltd. v. A.-G. Can., per Addy
J. at p. 109.
6. The ambit of questions on discovery
must be restricted to unadmitted allegations of fact in the pleadings, and
fishing expeditions by way of a vague, far-reaching or an irrelevant line of
questioning are to be discouraged: Carnation Foods Co. Ltd. v. Amfac
Foods Inc. (1982), 63 C.P.R. (2d) 203 (F.C.A.); and Beloit Canada
Ltee/Ltd. v. Valmet Oy (1981), 60 C.P.R. (2d)
145 (F.C.T.D.).
[Emphasis added.]
[5]
In addition, the list of exceptions in points 2
and 4 to 6 of Reading & Bates is not strictly intended, in my
opinion, to be exhaustive.
[6]
In many situations, the weighing referred to by
the Court in Reading & Bates at point 5 will be necessary.
[7]
In fact, although it was stated in relation to an
area of law other than the one of concern to the parties in the case at bar, it
seems to the Court that it would be nonetheless useful to reproduce here the
following excerpt from Faulding Canada Inc. v. Pharmacia S.p.A.
(1999), 3 C.P.R. (4th) 126, page 128:
... the general tendency of the courts to grant
broad discovery must be balanced against the tendency, particularly in
industrial property cases, of parties to attempt to engage in fishing
expeditions which should not be encouraged.
[8]
Rule 242 of the Federal Courts Rules (the
Rules), which applies to all cases, contains a warning to that effect. In fact
paragraphs 242(1)(b) to (d) of the Rules read as follows:
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242. (1) A person may object to a question asked in an examination
for discovery on the ground that
(…)
(b) the question is not relevant
to any unadmitted allegation of fact in a pleading filed by the party being
examined or by the examining party;
(c) the question is unreasonable
or unnecessary; or
(d) it would be unduly onerous
to require the person to make the inquiries referred to in rule 241.
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242. (1) Une personne peut soulever une objection au sujet
de toute question posée lors d’un interrogatoire préalable au motif que,
selon le cas :
(…)
b) la
question ne se rapporte pas à un fait allégué et non admis dans un acte de
procédure déposé par la partie soumise à l’interrogatoire ou par la partie
qui l’interroge;
c) la
question est déraisonnable ou inutile;
d) il serait trop onéreux de se renseigner auprès d’une
personne visée à la règle 241.
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[9]
Finally, the Court would merely add the following comment
here. The defendant is making much of the fact that in August 2009 the Federal
Court of Appeal indicated in this matter that the plaintiffs themselves
acknowledged in an interlocutory argument that their action was not founded on
the unlawfulness of the decisions of the Minister of Fisheries and Oceans.
According to the defendant, this admission would still be binding on the
plaintiffs.
[10]
I think instead that the situation needs to be considerably
qualified. The plaintiffs’ remarks were made at the time when the principles of
Canada v. Grenier, 2005 FCA 348 (Grenier) were
still in effect. However, on December 23, 2010, the Supreme Court of
Canada handed down its decision in Canada (Attorney General) v. TeleZone Inc.,
2010 SCC 62 (TeleZone).
[11]
Without going into a lot of detail about the ambit of this
decision here, the Supreme Court of Canada appears to have recognized that the lawfulness
of an administrative decision may be reviewed in the course of a damages claim
provided that the main relief sought by the plaintiff is not to have that
decision set aside. At paragraphs 4, 6 and 47 of that decision, the Court
states:
[4] The
Grenier principle would undermine s. 17 of the same Act granting concurrent
jurisdiction to the provincial superior courts “in all cases in which relief is
claimed against the Crown” as well as the grant of concurrent jurisdiction to
the superior courts in s. 21 of the Crown Liability and Proceedings Act,
R.S.C. 1985, c. C-50, to deal with tort claims. A central issue in some
(but not all) damages claims against the federal Crown will be the
“lawfulness” of the government decision said to have caused the loss. Grenier
would deny the provincial superior courts the jurisdiction to deal with that
central issue in a damages claim pending before them. Adoption of the Grenier
principle would relegate the provincial superior courts in such matters to a
subordinate and contingent jurisdiction — not concurrent, i.e., subordinate to
the Federal Court’s decision on judicial review and contingent on the Federal
Court being willing to grant a discretionary order on judicial review in favour
of the plaintiff.
…
[6] …The Federal Courts Act does not, by clear and direct
statutory language, oust the jurisdiction of the provincial superior courts to
deal with these common law and equitable claims, including the potential
“unlawfulness” of government orders …
…
[47] …Section 18 does not say that a dispute over the
lawfulness of exercise of statutory authority cannot be assessed in the course
of a trial
governed by the Crown Liability and Proceedings Act brought in the
provincial superior court or pursuant to s. 17 of the Federal Courts Act
itself.
[Emphasis added.]
II ‑ The undertakings to be determined
[12]
Although the parties have made very laudable efforts to
significantly reduce the many undertakings taken under advisement on the day
following Mr. Jones’ lengthy examination, there are nonetheless, under the
motion in issue, a certain number of undertakings that remain to be determined.
[13]
As required by this Court, the parties have produced a
joint table showing the Court the substance of the reasons in favour or not in
favour of producing any remaining undertaking.
[14]
The Court has reproduced this table and given it the title [TRANSLATION]
“Table of Undertakings”.
[15]
After having considered the parties’ motion records and
having heard their counsel, and keeping the relevant principles of case law in
mind, including those cited above and those raised by the parties, the Court has
indicated in the Table of Undertakings, using a double line (“║”) in
the margin next to all or part of the reasoning of a party for each undertaking
to be determined, whether, ultimately, this undertaking should be fulfilled or
not. The double line in the margin is in either one or the other of the last two
columns of the Table of Undertakings, unless an undertaking is to be fulfilled only
in part, in which case the double line may sometimes be found in part in one of
the columns, or the undertaking is the subject of a note in this regard in the
list at paragraph [16] below.
[16]
Thus, the plaintiffs’ motion is allowed in part as follows
and the defendant will therefore need to fulfill the undertakings which she has
already undertaken to fulfill as well as the following undertakings:
- 179: in part only for the production of the two drafts
concerned.
- 167
- 203
- 204
- 208
- 163: in part only in accordance with
the defendant’s approach identified at the top of the Table of Undertakings.
- 154: in part only in accordance with
the defendant’s approach identified at the top of the Table of Undertakings.
- 186: in part only in accordance with
the defendant’s approach identified at the top of the Table of Undertakings.
- 291
- 292
- 298
- 299
- 300
- 301
- 302
- 303: in part only for the production of the attachment
to the letter.
- 305
- 307
- 308
- 309
[17]
Given the length of the Table of Undertakings, this table
is deemed to be a part of these reasons for order and order but will be sent by
e-mail under separate cover by the registry to counsel for the parties.
[18]
As for costs on this motion, in view of the divided
outcome, no costs will be awarded.
[19]
Moreover and as discussed in Court on June 29, 2011, the
parties will see to jointly sending, in the form of a draft order to the Court,
on or before July 27, 2011, a timetable that will cover the remaining
steps to be completed , in a reasonable timeframe, following this order. The
Court will determine whether it is appropriate to adapt the dates or other conditions
proposed based on its needs and availability.
[20]
Finally, for the purposes of these reasons for order and
order and henceforth, the style of cause to be used in this matter will be as
follows:
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ROLAND
ANGLEHART SR. ET AL.
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Plaintiffs
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and
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HER
MAJESTY THE QUEEN
IN RIGHT
OF CANADA
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Defendant
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“Richard
Morneau”
Certified true translation
Susan Deichert, LLB
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